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Lord Falconer of Thoroton: The proposed new clause put forward by the noble Lord, Lord Elis-Thomas, would have the effect of amending the Sex Discrimination Act 1975 to remove from its scope the selection procedure for candidates standing for the assembly. If that is removed from the scope of the Sex Discrimination Act, it would allow positive discrimination in favour of women.

We must remember that domestic legislation must be looked at in the context of European employment law, and I am grateful to the noble Lord, Lord Mackay of Ardbrecknish, for reminding us of that and in particular for reminding us of the equal treatment directive with which we must comply as a matter of European law.

During the debate in another place on the Scotland Bill on 31st March of this year, Mr. Henry McLeish, the Minister at the Scottish Office, explained that any amendment to the 1975 Act could be open to challenge as being in contravention of European employment law. He was putting that forward as the Government's view and that remains the Government's view as a matter of law.

Indeed, the Government take the view that the initiative lies with the political parties themselves to improve the balance of women and men in their selection procedures. They can provide the encouragement for more to participate in the political process, including the offer of relevant advice, training and support for women and men to come forward as candidates for selection. Furthermore, the Equal Opportunities Commission has offered to make available its expertise if parties would find that helpful. The EOC will advise parties on the training of women to seek candidacies and the training of selectors to ensure that there is no discriminatory practice of any

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sort in the process of selecting candidates. I am sure that we all share the view that there must be no discrimination in the selection of candidates.

It would be remiss of me if I failed to mention that the Bill will require the assembly to have regard to the principle of equality in the way that it does business and in the exercise of its functions. The relevant clauses are Clauses 49 and 120, the latter also requiring the assembly, after each financial year, to publish a report outlining the arrangements made and assessing how effective those arrangements have been. That guiding principle of equality has been and will continue to be a constant. In the light of what I have said, I hope that the noble Lord will withdraw his amendment.

Lord Elis-Thomas: I am grateful to the noble and learned Lord the Solicitor-General and to other Members of the Committee who have taken part in the debate. This is one of the few areas where I part company with the noble Lord, Lord Islwyn. We are on a par on most social and political issues but on this issue, I must disagree with him.

I can only quote what Ms Julie Morgan said:


    "In Wales, women have been more dramatically under-represented in public and political life than in any other part of Britain. Wales has the lowest percentage of female councillors, and until May, only four women had ever represented Welsh constituencies. The three new women Members elected in May bring the grand total to four out of 40 and were selected from women-only shortlists. Positive action was required to ensure that more women were elected to represent Wales ".--[Official Report, Commons, 2/3/98; col. 789.]

That seems to me to be equally true of the position in relation to the national assembly. The noble and learned Lord the Solicitor-General emphasised that it is up to political parties to ensure greater equality.

I am pleased to tell Members of the Committee that the party of Wales Plaid Cymru, in the recent selection process for the European elections, introduced a method of selection whereby we as delegates were able to vote on a gender basis for a male person and for a female person. Then there was a run-off. I am pleased to say that Councillor Jill Evans was selected by a large majority to top the list to represent the party of Wales in the forthcoming European elections. It is to be hoped that, under the list system, she will be elected. Indeed, I would say that that is almost certain, knowing the quality of the candidate. That is the way that I believe all parties should respond in the forthcoming election to the national assembly.

However, I still take the view that we should be pursuing the opportunity to ensure that any action taken by political parties is within European directives and, indeed, within the more recent enabling provisions of the Treaty of Amsterdam, which will enable affirmative action to be taken in this area. I understand that I am not going to make much progress on the matter. But this has not been just for the sake of the record; it is a matter for the future. In that spirit, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Vacancies in Assembly constituency seats]:

[Amendments Nos. 33 and 34 not moved.]

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Clause 8 agreed to.

Clause 9 [Vacancies in Assembly electoral region seats]:

[Amendment No. 35 not moved.]

The Deputy Chairman of Committees (Lord Dean of Harptree): I should point out to Members of the Committee that if Amendment No. 36 is agreed to, I cannot call Amendments Nos. 37 or 38.

9.15 p.m.

Lord Falconer of Thoroton moved Amendment No. 36:


Page 6, leave out lines 8 to 11 and insert--
("(a) is included on that list,
(b) is willing to serve as an Assembly member for the Assembly electoral region, and
(c) is not a person to whom subsection (3A) applies.
(3A) This subsection applies to a person if--
(a) he is not a member of the party, and
(b) the party gives notice to the regional returning officer that his name is not to be notified to the presiding officer as the name of the person who is to fill the vacancy.").

The noble and learned Lord said: This government amendment deals with concerns expressed about the fairness of allowing people who had left a political party to remain on a party list put forward at an assembly election by that party. We believe that it would be an injustice and a disservice to the electorate if we were to allow a casual vacancy in a party list seat to be filled by someone who had been on the list at the time of the election but who had since left the party.

The electoral region ballot in the assembly elections will involve a choice between party lists or independent candidates. If they choose to vote for a party list, most voters will be voting for the party list as a whole rather than for any individual candidate on that list. The allocation of the electoral region seats in each electoral region is determined so as to compensate for any disproportionality in the seats won by the parties in the constituencies within that region.

It would be inconsistent with those circumstances if a vacancy in an electoral region seat won at the election by a party list were to pass to another allegiance because the next person on the original list was no longer a member.

The government amendment addresses that anomaly. It would introduce a new test for the regional returning officer to apply in respect of the next available person from the original party list. If the next person on the list were not a member of the party and the party itself were to inform the regional returning officer that the name of that person should not be notified to the assembly presiding officer to fill the vacancy, that person's name could not be put forward by the regional returning officer. That officer would be obliged to pass on to the next available person on the extant list and apply the same tests.

The government amendment differs from the amendment tabled by noble Lords from the party opposite in that it imposes a burden of proof of

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non-membership rather than proof of membership. There may be circumstances in which a party may be content for someone who is not a member--perhaps, for example, he has forgotten to renew his subscription--to fill the vacancy. Our amendment would provide for that circumstance, whereas the other amendment would not. In those circumstances, I beg to move.

Lord Mackay of Ardbrecknish: I am grateful to the noble and learned Lord for that explanation. Perfectly clearly, we were on the same wavelength, at least to some degree, when we considered this particular issue. As the noble and learned Lord said, we are talking about a circumstance where a vacancy occurs and the next person on the list has in fact left his party. It seems to me that it would not be right for him to be elected on his former party's ticket. That is why I have tabled this amendment. However, I am happy to bow to the Government's amendment which is drafted slightly differently.

I believe that the Minister answered one of the two questions that concerned me as regards the Government's amendment; namely, if a person is no longer a member of a party, the party would inform the returning officer that the person is no longer a member and should not be considered. That seems to be sensible. We are at all fours on that. But if he is not a member of the party, I find it difficult to understand why the party would tell the regional returning officer to accept him. The Minister suggested that the person concerned may have forgotten to renew his party membership. I can see that that could happen, but I think it is pretty unlikely. If I were the next person on the list to be elected to the assembly or to the European Parliament, and I realised that if someone higher on the list "fell off his perch" I could be elected, I would make sure that I retained my membership of the party. I believe it would be a foolish man or woman in that position who would allow his party membership to lapse. However, I understand what the Minister said. My deeply suspicious mind made me wonder whether there was some other point behind that, but, as I say, I accept entirely what the Minister has said.

I take it that "and" does not mean "or". I find that lawyers have a habit of mixing "and" and "or", at least to my simple mind. In other words, as regards someone who is still a member of the party, the party may give notice to the regional returning officer that it did not want that person to be considered. This could be a case of the "control freaks" in a party apparatus wanting to make sure that anyone who deviated from the straight and narrow was immediately denied the possibility of being elected to the Welsh assembly in the event of people higher on the list dying or retiring. I hope that the Minister can assure me that "and" does not mean "or"; in other words, that someone who is next on the list will not be denied the chance to be elected because the party has decided that that person's face no longer fits, although he may still be a member of the party. I do not think that the Minister dealt with that point, and I should be grateful if he would assist me on it.

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My next point may perhaps be more appropriate to a clause stand part debate, but it is related to the point that we are discussing. I hope I may discuss it now. I refer to the case of someone on the list who is elected but leaves the party during the course of his membership of the assembly. We have the first-past-the-post tradition in this country. People are elected for themselves. Therefore if they cross the Floor and join another party, while people shout that they should resign and a by-election should be held, we all accept in reality that they were elected for themselves and therefore they are quite entitled to retain their seat even if they have changed their party. It seems to me that the regional list concept alters that argument; indeed I believe it negates that argument. I had wondered whether to table an amendment to make provision for that. However, my ingenuity fell short of tabling an amendment that satisfied me as I also realised that if the party did not like the way someone voted it could drum that person out of the party and push him or her off the list. I considered that would be unfair and therefore I was confronted with a difficult dilemma.

I hope that the Minister can address the point of someone who is already elected who decides to leave his party. As I read the Bill, he would be able to stay in the assembly despite the fact that he was definitely flying under false colours as it were. With that small reservation about the list system, I welcome the amendment that the Minister has tabled. I am pleased that we have been able to clear up what may have constituted an anomaly at some stage in the future.


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